Thursday, January 24, 2008

Repackaging Korematsu

[Cross-posted at Firedoglake.]
I noticed a couple of years ago
that Republicans eager to defend the Bush administration’s grotesque
power grab under the aegis of the "war on terror" — especially its
claims regarding "enemy combatants" and military tribunals — have been
trotting out the notion that the Supreme Court’s 1942 Korematsu v. United States ruling was, upon further consideration, a good and proper ruling.

This was the ruling, you’ll remember, in which the Supreme Court upheld the mass incarceration of Japanese Americans during World War II. It is now widely viewed as one of the high court’s three great historical mistakes, alongside Dred Scot and Plessy v. Ferguson.

Mind you, at the time, it was that "constitutional expert" Ann
Coulter talking, which meant it was being floated out there on the
pop-culture level. Now, it appears, a slightly modified version of this
meme is making the rounds among supposedly respectable legal minds.
Coulter actually was correct on a certain level: as the Wikipedia entry
notes, even after Fred Korematsu’s conviction was vacated, "The
essential holding of the 1944 Korematsu decision — namely, that a
race-based exclusion program founded on considerations of military
judgment did not violate the Constitution — remained untouched."

Coulter, unsurprisingly, thought this was a good thing: anything to
help the Bush administration further open wide the hole in the
Constitution (one, in fact, largely created by the internment episode) by wildly expanding executive-branch powers during wartime. As I noted previously:

What the Japanese-American internment revealed for the first time was
a hole in the traditional checks and balances of constitutional powers.
In wartime, the total deference to the executive branch would lend it
nearly comprehensive powers. The post-Sept. 11 response has opened
another dimension to this: If wartime — as in the “War on Terror” —
becomes itself a never-ending enterprise, then the executive branch’s
power becomes potentially illimitable.

Now, Stephen Griffin at Balkinization noted recently that the Korematsu
ruling is being given a second life of sorts by conservative legal
eminences engaging in a grotesque kind of historical revisionism:

The basic flavor of the new conventional wisdom is that the
internment was justified on the basis of the knowledge available to
government officials acting in good faith in the confused months
following the December 1941 attack on Pearl Harbor. Later, however,
using the benefits of hindsight, “liberals” condemned the Korematsu case
as racist and consigned it to the category of one of the worst
decisions in the history of the American judiciary. I think exploring
this new conventional wisdom yields some insights on the quality of
constitutional analysis post-9/11.

Note, if you will, that this "conventional wisdom" bears more than a passing resemblance to Michelle Malkin’s misbegotten thesis of a few years back. Now we’re hearing the same thing from Judge Richard Posner:

One example is in a book written by Judge Posner on Bush v. Gore.
Posner suggests that liberals “denounce [Korematsu] from the safe
distance of half a century.” He comments that the threat posed by Japan
was perceived to be great, “though in hindsight we know that the
perception was exaggerated.” Apparently making a comment about liberals
today, Posner states: “Liberals detest Korematsu, but not because it
allowed pragmatism to trump principle; rather because of suspicion of
the military and a sense of shame about the history of the nation’s
mistreatment of East Asians.”

I was surprised to find another example of this sort of reasoning in a
casebook on foreign relations law by Professors Bradley and Goldsmith.
They refer to “intelligence information” about threats from Japanese
civilians as if it was credible at the time. They note that Korematsu
“is widely decried,” but apparently on the basis of an “ex post
perspective” in “hindsight.” They ask students to reflect whether
hindsight is “the proper perspective from which to determine the
validity of military orders in response to perceived emergencies?”

The problem, of course, is not that "pragmatism trumped principle" in the Korematsu
ruling — it’s that hysteria trumped both pragmatism and principle, a
hysteria fueled by unchecked military officials seeking to accrue new
powers outside the purview of the courts. Griffin goes on to explain
just why the Korematsu ruling is considered such a travesty —
namely, that the "military necessity" cited by the court in acceding to
the evacuation and incarceration of 120,000 people was a demonstrable
falsehood even at the time:

It’s not as if everyone figured out decades after WWII that the
internment had been a terrible mistake, as Posner would have it. Most
responsible lawyers with access to relevant information knew the
internment was unjustified at the time. Others without access to FBI
files were capable of exercising their common sense judgment to figure
out that the evidence available could never justify the deportation of
whole families into internal exile.

Put simply, the deference of the Court to the executive branch in
wartime that Korematsu exhibited was predicated on deceptiveness from
the Justice and War departments that in turn sought to obscure the
nakedly racist nature of the claim of "military necessity." That is to
say, when the Courts so abjectly defer to such wartime powers, the
executive can expand all its powers to unimaginable heights simply on
its say-so, whether truthful or not.

Of course, as I also noted back when Coulter was floating this meme,
there is a certain firewall in place within the court system entailing
the consensus view of Korematsu as bad law: most of the current justices have indicated that this is their view of it, including John Roberts,
for whom the case came up as a significant question during Senate
confirmation hearings, at which he made clear that he saw it as "a
mistake."

So it remains unlikely, at present at least, that any attempt by the Bush administration to use Korematsu
as a precedent in its legal wranglings over the inmates at Guantanamo
and other "enemy combatants," would survive at the Supreme Court level.

But now that supposed legal experts and judicial authorities have run
this meme up the flagpole, it will be interesting to see who else
salutes. If people like Posner are selling it, you never know who
(cough*Scalia*cough*Thomas*cough*Alito) might be buying.

Sara Robinson has worked as an editor or columnist for several national magazines, on beats as varied as sports, travel, and the Olympics; and has contributed to over 80 computer games for EA, Lucasfilm, Disney, and many other companies. A native of California's High Sierra, she spent 20 years in Silicon Valley before moving to Vancouver, BC in 2004. She currently is pursuing an MS in Futures Studies at the University of Houston. You can reach her at srobinson@enginesofmischief.com.